UCI Anti-Doping Tribunal Judgment cases ADT …

1 Anti-Doping Tribunal UCI Anti-Doping Tribunal _____ Judgment cases ADT and UCI v. Mr. Jure Kocjan _____ Single Judge: Mr. Ulrich Haas (Germany) Aigle, 28 June 2017 2 INTRODUCTION 1. The present Judgment is issued by the UCI Anti-Doping Tribunal (hereinafter referred to as the Tribunal ) in application of the UCI Anti-Doping Procedural Rules (hereinafter referred to as the ADT-Rules ) in order to decide upon violations of the UCI Anti-Doping Rules (hereinafter referred to as the ADR ) committed by Mr. Jure Kocjan (hereinafter referred to as the Rider ), as alleged by the UCI (hereinafter collectively referred to as the Parties ). I. FACTUAL BACKGROUND 2. The circumstances stated below are a summary of the main relevant facts, as submitted by the Parties. Additional facts may be set out, where relevant, in connection with the legal discussion that follows. While the Single Judge has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, the Judgment refers only to the necessary submissions and evidence to explain his reasoning.

2 3. The Rider is a professional cyclist of Slovenian nationality. He is affiliated to the Slovenian Cycling Federation ( SCF ) and a License-Holder within the meaning of the ADR. The Rider started his professional cycling career in 2006. At the time of the doping test in 2012, the Rider was contracted to the team Type 1 Sanofi. 4. On 8 March 2012, the Rider provided a urine sample (number 3029970) as part of an out-of-competition control in Borger, Netherlands. The control was carried out by a doping Control Officer on behalf of the UCI. On the doping Control Form, the Rider declared that he had taken no medication during the seven days prior to the sample collection and that the sample had been taken in accordance with the regulations. 5. The urine sample provided by the Rider was then analyzed in the WADA-accredited Laboratory in Cologne (hereinafter referred to as the Laboratory ), Germany.

3 The analysis for Erythropoiesis-Stimulating Agents (hereinafter referred to as ESAs ) was conducted in accordance with the WADA Technical Document on the analysis and reporting of EPO, version in force from 21 September 2009 to 1 March 2013 (hereinafter referred to as TD EPO2009 ). The sample was reported as negative for Recombinant Erythropoietin (hereinafter rEPO ). 6. In 2015, the UCI decided to submit the Rider s sample for re-analysis be the Laboratory according to the new Technical Document governing the analysis of ESAs (hereinafter referred to as TD EPO2014 ), in force as of 1 September 2014, and informed the Rider thereof. As there was not enough urine left in the A-sample to conduct such analysis, the B-sample was split to create new A and B samples (hereinafter referred to as NA and NB ). 7. On 11 January 2016, the Laboratory opened the Rider s B-sample, split its volume into two bottles and resealed the NB-sample.

4 This happened in the presence of an independent witness appointed by the Laboratory. Even though invited to do so on several occasions the Rider failed to communicate whether he himself or a representative would attend this procedure. 8. On 11 January 2016, the Laboratory analyzed the Rider s NA-sample. The Laboratory reported an Adverse Analytical Finding (hereinafter AAF ) for rEPO. rEPO is a prohibited substance listed under class S2 Peptide Hormones, Growth Factors, Related Substances and Mimetics of the 2012 and 2016 versions of the WADA Prohibited List adopted by the UCI. According thereto, rEPO is prohibited at all times (in- and out-of-competition). 3 9. On 28 January 2016, the Rider was notified of the AAF by the UCI. He was also informed of the mandatory provisional suspension imposed on him. 10. In addition to informing the Rider, the UCI also informed the SCF, the Slovenian Anti-Doping Organization (hereinafter referred to as the SLOADO ), the Rider s Team for 2016 and the WADA of the Rider s AAF.

5 11. On 2 February 2016, the Rider s counsel informed the UCI that the Rider was requesting the analysis of the NB-sample. Furthermore, he requested to receive the documentation packages for the NA-sample and the NB-sample. 12. On 16 February 2016, the UCI sent the document package of the analysis of the NA-sample to the Rider s counsel. 13. From 14 16 March 2016, the Laboratory analyzed the Rider s NB-sample. The Rider s representative witnessed the opening of the NB-sample. This ESAs analysis was again conducted in accordance with the TD EPO2014. 14. In its report dated 17 March 2016, the Laboratory declared that rEPO has also been found in the Rider s NB-sample. 15. On 18 March 2016, the UCI notified the Laboratory findings to the Rider. By the same communication, the UCI offered the Rider a second opportunity to submit an explanation and / or provide substantial assistance. Furthermore, the UCI asserted in its letter that the Rider had committed an Anti-Doping rule violation (hereinafter referred to as ADRV ) for the Presence and Use of rEPO under Articles and of the UCI ADR 2012.

6 16. On the same day, the Rider requested to be provided with the documentation package for the NB-sample analysis. The UCI informed the Rider that it stayed the deadline to submit an explanation, pending the production of the NB-sample analysis documentation package. 17. On 8 April 2016, the UCI sent the respective documentation package to the Rider. The Rider was granted until 22 April 2016 to submit his explanations. 18. On 19 April 2016, the Rider provided his explanation to the UCI. He requested that the proceedings against him be closed. 19. Since the explanations provided by the Rider on 19 April 2016 were similar to the ones raised in a parallel proceeding pending before the Tribunal concerning the cyclist Ms. Klemencic and considering that Ms. Klemencic was represented by the same counsel as the Rider, the UCI decided to stay the results management process of the Rider s case until the Tribunal had rendered its decision in the Klemencic case .

7 20. On 20 May 2016, the Tribunal rendered its decision in the Klemencic case . On 15 June 2016, Ms. Klemencic filed an appeal against the decision of the Tribunal with the Court of Arbitration for Sport (hereinafter referred to as the CAS ). 21. On 19 September 2016, the Rider s counsel requested that the results management of the Rider s case be resumed despite Ms. Klemencic s appeal to the CAS. 22. On 30 September 2016, the UCI informed the Rider that it considered the ADRV to be established. The UCI offered the Rider an Acceptance of Consequences pursuant to Article 4 of the ADR. The UCI advised the Rider that disciplinary proceedings would be initiated in case he did not agree with the proposed Acceptance of Consequences. 23. On 6 October 2016 and 13 October 2016, the Rider discussed the possibility of providing substantial assistance with the UCI. Subsequently, the UCI sent the Rider a draft of a collaboration agreement on 4 November 2016.

8 The following day, the Rider discussed the details of this draft agreement over the phone with .. who works as an attorney-at-law for the Legal Anti-Doping Services (a specific unit of the UCI conducting the legal assessment of potential doping cases ). 24. On 7 November 2016, the Rider informed the UCI that he would not provide substantial assistance. 25. On 14 November 2016, the Rider wrote .. an e-mail that reads as follows: I would like to inform you, that I recorded our last phone conversation when you said I am free to race, will keep my house and my bike shop, will have no cash penalty if I am ready to cooperate and testify, aside that everything will remain confidential. It sounds like a threat so I am giving you 48h to find a way, that is acceptable for both of us. After deadline, everything goes public .. 26. The following day, .. wrote an email to the Rider and his counsel, in which he contested to have threatened the Rider.

9 Furthermore, he informed them that he could not negotiate an Acceptance of Consequences in the way requested by the Rider. 27. On 25 November 2016, the UCI referred the Rider s rEPO case to the Tribunal (hereinafter the First case or First ADRV ). In its referral to the Tribunal , the UCI requested the following: Declaring that Mr. Kocjan has committed an Anti-Doping Rule Violation. Imposing on Mr. Kocjan a period of ineligibility of two years. Disqualifying all the results obtained by Mr. Kocjan from 8 March 2012 until the day he was provisionally suspended. Ordering Mr. Kocjan to pay a fine of .. Ordering Mr. Kocjan to pay the costs of results management incurred by the UCI (2 CHF) and the costs incurred for Out-of-Competition Testing (1 CHF). Ordering Mr. Kocjan to reimburse the costs of the B-sample analysis (2 EUR) and of the two documentation packages (1 EUR). 28. On the same day, the UCI charged the Rider with a second ADRV for Tampering and / or Attempted Tampering based on his e-mail of 14 November 2016 (hereinafter referred to as the Second case or Second ADRV ).

10 The UCI informed the Rider that it qualified his menace to publicly release the (secretly) recorded telephone conversation with .. as a conduct contrary to the ADR. By the same communication, the Rider was invited to provide explanations regarding this Second ADRV. 29. On 29 November 2016, the Rider replied by stating that he was available for a phone call if the UCI wished to discuss the matter. 5 30. On 1 December 2016, the Rider wrote to the UCI and denied having committed Tampering and / or Attempted Tampering. 31. On 9 December 2016, the Rider s counsel filed a statement of defense before the Tribunal in the First case , in which he also addressed the charge for Tampering and / or Attempted Tampering. 32. On 16 January 2017, the UCI referred the Rider s Second case to the Tribunal for determination. The UCI, furthermore amended its previous prayers of relief and now seeks (based on the First and the Second case ) that the Tribunal decide on the following requests: A.